Schmidt v. Director, TDCJ-CID

MEMORANDUM ORDER REGARDING THE MAGISTRATE JUDGE'S
REPORT AND RECOMMENDATION

THAD
HEARTFIELD UNITED STATES DISTRICT JUDGE

David
Andrew Schmidt, proceeding pro se, filed the
above-styled petition for writ of habeas corpus challenging a
prison disciplinary hearing. The court previously referred
this matter to the Honorable Zack Hawthorn, United States
Magistrate Judge, at Beaumont, Texas, for consideration
pursuant to applicable orders of this court. The Magistrate
Judge has submitted a Report and Recommendation of United
States Magistrate Judge recommending the petition be granted,
the disciplinary action expunged from petitioner's record
and the forfeited good conduct time credits be restored.

The
court has received and considered the Report and
Recommendation of United States Magistrate Judge, along with
the record and pleadings. The respondent filed objections to
the Report and Recommendation. The court must therefore
conduct a de novo review of the objections.

Petitioner
was charged with stealing and damaging or destroying property
belonging to the State of Texas. The property was two bread
bags of powdered milk that petitioner allegedly destroyed by
removing them from their original container. The offense
report stated the bags were found in petitioner's locker
during a search of the cell. The report stated petitioner
said he obtained the milk from another inmate to sell.

In the
Disciplinary Report and Hearing Record prepared concerning
the case, the disciplinary hearing officer stated he based
his finding of guilty on petitioner's admission of guilt
and the offense report. The contents of the offense report
are described above. Petitioner's admission of guilt was
based on a statement he allegedly made to his counsel
substitute when he told the counsel substitute he did not
want to attend his disciplinary hearing. Petitioner denies
telling the counsel substitute he did not want to attend the
hearing and denies making an admission of guilt.

The
Magistrate Judge concluded this evidence was insufficient to
support the conviction. Acknowledging that the evidentiary
burden in this proceeding was low, the Magistrate Judge
stated there was no evidence that the bread bags of powdered
milk found in petitioner's locker belonged to the state
or came from a container that belonged to the state. The
Magistrate Judge therefore recommended that the petition be
granted, the disciplinary case expunged and the forfeited
good conduct time credits restored.

In the
objections, the respondent contends there was sufficient
evidence to support the conviction. The respondent states
that while petitioner now denies making the statement, his
admission of guilt to his counsel substitute nevertheless
constitutes some evidence of his guilt. In addition, the
respondent contends the offense report contains the charging
officer's statement that the milk found in
petitioner's locker belonged to the state. The respondent
asserts this statement also constitutes some evidence of
petitioner's guilt.

In
light of petitioner's contention that he was improperly
prevented from attending his disciplinary hearing based on
actions of his counsel substitute, the court is not prepared
to conclude petitioner's statement to the counsel
substitute can be used as evidence of his guilt. Moreover,
while the court is aware that on federal habeas review a
prison disciplinary conviction will be upheld so long as
there is “any evidence in the record” supporting
the conviction, Superintendent, Massachusetts
Correctional Institution v. Hill, 472 U.S. 445, 455
(1983), the Magistrate Judge correctly concluded there was no
evidence demonstrating that the property found by the
charging officer belonged to the state or came from a
container that belonged to the state. The charging
officer's conclusory statement that the property belonged
to the state is insufficient because there is no factual
evidence to support the statement.

In
addition, the respondent contends that even if the petition
is granted and petitioner's good conduct time credits
restored, she objects to the recommendation that the
disciplinary proceeding be expunged. She states that in a
habeas action, the court is empowered to order that an inmate
be released from confinement or, as in this case, direct that
action be taken-the restoration of good conduct time
credits-that would result in an inmate being released sooner.
However, she contends this is all the court is empowered to
do and that once the good conduct time credits are restored,
the court lacks the authority to also order the disciplinary
action expunged.

The
court is of the opinion this point is well-taken. The purpose
of a habeas action is to redress any injury a petitioner
suffered that affects the fact or duration of his
confinement. Restoration of the forfeited good conduct time
credits is sufficient to redress the effect of the
disciplinary conviction on the fact or duration of
petitioner's confinement. It is not necessary to also
order that the disciplinary conviction be expunged.

ORDER

&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;Accordingly,
the respondent&#39;s objections are
OVERRULED except with respect to the
expungement of the disciplinary conviction. The Report of the
Magistrate Judge is ADOPTED except with
respect to the recommendation that the disciplinary
conviction be expunged. A final judgment will be entered
...

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